Frequently Asked Questions

A solicitor prepared the Will. Can I still challenge it?

Yes. In a family provision claim, it is the duty of a Willmaker to make adequate provision for your proper maintenance and support. It is not a question of whether the Willmaker had capacity. Therefore, the Courts will interfere with a Will made by solicitors if the Willmaker did not take into account the financial needs of their spouse, children or step children. It is also possible, as we have done, to challenge a Will and have it set aside even though it was drafted and witnessed by a solicitor. We were able to prove in the matter of Ruskey-Fleming v Cook that although the solicitor believed the Deceased had capacity, there was other evidence which outweighed his opinion and the proved that the Deceased did not know or understand what he was doing when the Will was made.

The Executor won’t give me a copy of my parents’ Will. Can they do that?

No. If the Executor or anyone else who holds the Will refuses to provide you with a copy of your mother or your father’s Will, you are entitled to demand a copy pursuant to s33Z of the Succession Act. Usuallywe find a strongly worded demand from our office will work.If the person holding the Will still refuses to provide you with a copy,we can apply to the Court for an Order that it be provided.

My parent didn’t leave anything for me in their Will. What can I do?

Each Willmaker has a duty to make adequate provision for the proper maintenance and support of their children. If you don’t think that has happened, you should talk to us so we can file Court proceedings for you, claiming further provision from the estate.

Who can bring an estate claim in Queensland?

The most common Applicants for family provision claimsare the Deceased person’s spouse, child and step-child. Some other people are eligible to bring a claim in Queensland. If you are not sure whether you have a right to apply, call us.

Can I claim against my step-parent’s estate?

Yes you do have a right to claim against a step-parent’s estate and it is generally the most common type of family provision claim.

If I challenge a Will how much will I get?

What you will receive depends upon your circumstances, the details of the case and the size of the estate. Your relationship with the Deceased person, your financial position and the financial position of the other people named in the Will must be considered. If the Courts make further provision for an Applicant, the amount of the provision will generally be over $30,000.00. Depending on the circumstances of the claim and the size of the estate, some awards for further provision could be in excess of $1million.

When should I bring the claim?

Time limitations do apply. In Queensland the time limits are much shorter than in other jurisdictions. You must file Court proceedings within nine (9) months from the date of the Deceased person’s death but if you don’t notify the Executor of your intention to challenge the estate within six (6) months, they can distribute the estate.

I told the Executor that I will challenge the Will. They told me that they would rather spend all of the estate money on lawyers so they don’t have to give me a cent. Is that possible?

It would be a very foolish Executor to adopt this approach. The Executor’s job is to uphold the Will so far as is reasonable. If the Court thinks that the Executor has wasted the estate’s money on legal fees, the Court can Order that the Executor must personally pay all of the legal costs from their own pocket rather than the Executor being able to spend the estate’s money for this purpose.

If I bring a claim, how long will it take before I receive any money?

You won’t receive any money from the estate until your claim settles. We don’t see the point in wasting time and so we will aggressively pursue your claim through to a resolution so that you receive your money as quickly as possible.

Do I have to go to Court?

No. The vast majority of estate claims settle well prior to Trial because the Executors generally take a commercial approach to any estate litigation. They generally would prefer to make an offer early to prevent the cost and delays of going to Trial. If the offer is good you can accept it and if it is not, you can take your matter to Trial.

I don’t have money to pay lawyers. Can you act for me on a “no win no fee” basis?

We act for some clients on a “no win no fee” basis. We will talk to you about your circumstances and if you meet our criteria, we will act in your claim where we will not receive any fees unless you receive money from the estate.

I don’t live near one of your offices. Can you still represent me?

Absolutely. We act for clients based all over Australia. We are happy to work with you so that we can represent you in a way which best suits your circumstances.